<%-- Page Title--%> Reader's Queries <%-- End Page Title--%>

January 25, 2004 

Your Advocate

This week your advocate is M. Moazzam Husain of the Supreme Court of Bangladesh. His professional interests include civil law, criminal law and constitutional law.

Q: A young man came to me with request to buy his proportion of land property which his father would have got if he was alive. But his father died before his parents death. This person has 3 uncles and 4 aunts. His grandparents did not distribute their land property among their children during there life time. One thing is mentionable that his grand mother had blind affection to her youngest son. She declared during her lifetime that she will legally give all her property to the youngest son by 'heba'/gift or will. My questions are a) since his father died before his grand parents death, how he will sell his father's due share? b) In this situation can I buy his said portion of his grand mother's land property legally? c) His uncles and aunts will get their due share 2:1 as per rule. How much this boy will get? d) After purchasing that portion of land from him, if it is found that his grand mother gave her property to his youngest son by 'heba', will my purchase be illegal? e) Can the young man sell his portion of land by taking money form me writing on stamp paper; and will it be legal? f) what is the legal process to do 'heba' or 'will'? Please give legal advice on the above subject.
Mr. Jamil Ahmed,
Mirpur, Dhaka.

Your Advocate: Your query lacks information necessary for a specific legal opinion. The time of death of the grandparents of the person offering to sell land is crucial. Since you have used the term 'a young man' let us presume that his grandparents died after 1961. The year 1961 is important in the sense that if the proposed seller's grandparents had died before 15th July, 1961 he does not acquire any saleable interest in their property. Now that the young man offering for sale has lost his father before his grandparents and the grandparents presumably died after 15th of July 1961 he is entitled to inherit the share of the property of his deceased grandparent which his father would have inherited, if alive. Therefore, other things remaining the same, the young man has acquired right, title and interest in his grandparents' subsisting property so as to be competent to offer for sale and you can safely go for buying the same. But you must check the quantum of share he is entitled to.

So far as the question of gift by his grandmother is concerned, you will have to make sure whether really there was any such gift made by your proposed vendor's grandmother in favour of her youngest son. If you cannot make sure it would be advisable for you to go for buying land to the extent your vendor is entitled to his grandfather's property only. As for the transactions, there is legal procedure as to how the transactions of sale is documented. Law requires that the disposition should be effected by a deed of sale duly registered in the Sub-Registrar's office having jurisdiction to register the same.

As for the question of 'gift' and 'will' the accepted broader principles are- every Mohammedan of sound mind and not a minor may dispose of his property by gift. It is a transfer made immediately and without any exchange by one person to another and accepted by or on behalf of the latter. Gift may be made of the entire property to any person irrespective of relationship. But a will may be made of one third of the testator's property after meeting the funeral expenses and debts. And a will in favour of an heir is invalid unless other heirs consent to it after the demise of the testator. Under Mohammedan law both gift and will may be oral. For a valid gift there must be a declaration of gift by the donor, acceptance by the donee and delivery of possession to the donee. In case of will there is no particular form. A verbal declaration may constitute a will. But the intention of the testator to make a will must be clear and explicit. Regardless of the legal position the practices of oral gift or oral will are gradually being narrowed down with the passes of time and almost every single disposition of the kind now a days is being written and registered. Secular laws, of course, require a deed of gift above certain valuation to be registered. Gift and will are complicated subjects involving technical questions of law and if you really want to make a gift or will it is always advisable to consult a good civil lawyer.